A new edition of the Municipal Law Alert is now available online. This month’s article discusses a recent Court of Appeals Decision regarding social host ordinances.
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The Wisconsin Court of Appeals recently held that municipal ordinances which make it unlawful to provide an environment where underage drinking may occur (social host ordinances) may only apply to areas described in a license or a permit, and not to private residences.
In this case, a property owner held a high-school graduation party at his residence where alcohol was served. Late in the evening, underage individuals brought beer to the party and the property owner did not attempt to prevent the underage consumption of alcohol on his property. The property owner was cited for violating the County’s social host ordinance, which prohibited the hosting of an event at a residence, premises, or other public or private property where the host knows underage drinking will or does occur, and fails to take preventative measures. On appeal, the court reiterated that regulation of alcohol is a matter of statewide concern and any municipal ordinances regulating alcohol must be in strict conformity with the state statute. The court found that the County’s ordinance was invalid as it did not strictly conform to the state statute.
This decision could have far reaching implications. Unless the Wisconsin legislature changes the state statute, local governments are likely now prevented from punishing adults who passively allow underage drinking parties on their property.
It is important to distinguish between passive and active conduct by residential property owners. Municipalities can no longer enact or enforce ordinances punishing property owners for merely allowing minors to consume alcohol on their residential property. However, this decision likely does not prohibit municipalities from enacting or enforcing ordinances which punish residential property owners for actively encouraging such behavior by minors (for example, by providing alcohol to minors).
This case may still be appealed and thus changed or clarified by the Wisconsin Supreme Court. Given the outcome, it is also possible that the legislature will change the state statute to regulate such conduct. Local governments should consult with their municipal attorney if they have an ordinance which is similar to the City of Fond du Lac’s, and can monitor the Bakke Norman Municipal Law Alerts for developments on this issue prior to enacting or enforcing local social host ordinances which do not strictly conform to state statute.
City of Fond du Lac v. Muche (October 26, 2016).
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